A.S. Qureshi, J.
1. These two appeals are filed by the State against the present respondent who is the Manager of a factory known as Sudershan Khandsari Udyog Private Limited at Cheswad, Taluka Valia, District Broach. The accused was charged for offences under Section 21(l)(v)(c) and under Section 66(l)(b) of the Factories Act punishable under Section 92 of the said Act. The prosecution case was that when the Factory Inspector visited the premises he found that woman employees were working on the night shift in contravention of Section 66(l)(b) and that one sub-work woman had her sari caught in conveyer belt resulting in injury to her and hence the accused was said to have committed an offence punishable under Section 21(l)(iv)(c) of the Factories Act. During the course of the trial the complainant failed to remain present on the day on which the matter was fixed for hearing i.e. June 30, 1979. The learned Magistrate, therefore, passed an order discharging the accused on the ground that the complainant was not present. Against the said order of discharge the State has come in appeal. It is important to note here that no reason for absence was given before the learned Magistrate either by way of an application or an affidavit or otherwise.
2. Mr. M.A. Trivedi, the learned Additional Public Prosecutor urges that in the appeal memo the ground is set out showing that the complainant had pain in the abdomen and hence he had gone out for a call of nature and in the meantime the matter was called out and the learned Magistrate was pleased to pass the impugned order. Firstly, it is not proper to offer an explanation in an appeal memo. This Court is not bound to take notice of any ground that may be set out in the appeal memo. The proper thing would have been to make an application to the learned Magistrate immediately pointing out that the absence of the complainant was only momentary and the Court could have been persuaded to cancel its order and hear the matter on merits. No such application was made before the learned Magistrate which shows that the explanation offered in the memo is an afterthought. If really the complainant was in the Court compound, he would have soon come to know that the accused is discharged and both the complaints have been rejected on the ground of his absence. In any case, the explanation offered does not appear to be a genuine one and hence there is no reason to interfere with the order passed by the learned Magistrate. Both the appeals are, therefore, dismissed.
3. In this case it must be noted that the offences alleged against the accused are pertaining to contravention of the provisions of the Factories Act. The factory owners are duty bound to carry out the provisions laid down in the Act for the safety of workmen. Any contravention thereof ought to be taken serious note of. Although the accused has been discharged on account of a fortutous circumstance that the complainant did not remain present, but that does not absolve the accused from complying with the duty cast on him under the Factories Act. Although in dismissing these two appeals we have upheld the order of the learned Magistrate discharging the accused but we feel, it is necessary in the interest of justice that the accused be directed to file an undertaking in this Court to the effect that in future he will not contravene the provisions of the Factories Act for which he is charged in this case. The respondent shall file his undertaking to the aforesaid effect within a period of two weeks from today.